Nuveen Core Equity Alpha Fund [·] Common Shares of Beneficial Interest Par Value $0.01 Per Share UNDERWRITING AGREEMENT
[·] Common Shares of Beneficial Interest
Par Value $0.01 Per Share
[·], 2007
March [·], 2007
UBS Securities LLC
[·]
as Representatives
c/o UBS Securities LLC
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Ladies and Gentlemen:
Nuveen Core Equity Alpha Fund, a voluntary association with transferable shares organized and existing under and by virtue of the laws of The Commonwealth of Massachusetts (commonly referred to as a Massachusetts business trust) (the “Fund”), proposes to issue and sell to the underwriters named in Schedule A annexed hereto (the “Underwriters”) an aggregate of [·] common shares of beneficial interest (the “Firm Shares”), par value $0.01 per share (the “Common Shares”), of the Fund. In addition, solely for the purpose of covering over-allotments, the Fund proposes to grant to the Underwriters the option to purchase from the Fund up to an additional [·] Common Shares (the “Additional Shares”). The Firm Shares and the Additional Shares are hereinafter collectively sometimes referred to as the “Shares.” The Shares are described in the Prospectus which is defined below. UBS Securities LLC (“UBS Securities” or the “Managing Representative”) will act as managing representative for the Underwriters in connection with the issuance and sale of the Shares.
The Fund has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively called the “Securities Act”), and with the provisions of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “Investment Company Act”), with the Securities and Exchange Commission (the “Commission”) a registration statement on Form N-2 (File Nos. 333-139962 and 811-22003), including a prospectus and a statement of additional information, relating to the Shares. In addition, the Fund has filed a Notification of Registration on Form N-8A (the “Notification”) pursuant to Section 8 of the Investment Company Act.
Except where the context otherwise requires, “Preliminary Prospectus,” as used herein, means each prospectus (including the statement of additional information incorporated therein by reference) included in such registration statement, or amendment thereof, before it became effective under the Securities Act and any prospectus (including the statement of additional information incorporated therein by reference) filed with the Commission by the Fund with the consent of the Managing Representative on behalf of the Underwriters, pursuant to Rule 497(a) under the Securities Act.
Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Securities Act, as such section applies to the respective Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof or incorporated by reference therein, (ii) any information contained in a prospectus subsequently filed with the Commission pursuant to Rule 497 under the Securities Act and deemed to be part of the registration statement at the Effective Time pursuant to Rule 430A under the Securities Act, and (iii) any registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Securities Act.
Except where the context otherwise requires, “Prospectus,” as used herein, means the final prospectus (including the statement of additional information incorporated therein by reference) as filed by the Fund with the Commission (i) pursuant to Rule 497(h) under the Securities Act on or before the second business day after the date hereof (or such earlier time as may be required under the Securities Act) or (ii) pursuant to Rule 497(b) under the Securities Act on or before the fifth business day after the date hereof (or such earlier time as may be required under the Securities Act), or, if no such filing is required, the final prospectus (including the final statement of additional information) included in the Registration Statement at the Effective Time, in each case in the form furnished by the Fund to you for use by the Underwriters and by dealers in connection with the confirmation of sales in the offering of the Shares.
“Pricing Prospectus” means the Preliminary Prospectus that is included in the Registration Statement, or otherwise furnished by the Fund to you for use by the Underwriters and by dealers in connection with the offering of the Shares, immediately prior to the Applicable Time (as defined below) and any amendment or supplement to such Preliminary Prospectus from the Applicable Time through the Closing Time (as defined herein below).
“Pricing Information” means the information relating to (i) the number of Shares issued and (ii) the offering price of the Shares included on the cover page of the Prospectus dependent upon such information.
“Disclosure Package” means the Pricing Prospectus taken together with the Pricing Information.
“Sales Materials” means those advertising materials, sales literature or other promotional materials or documents, if any, constituting an advertisement pursuant to Rule 482 under the Securities Act authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser (as defined below) or any representative thereof for use in connection with the public offering or sale of the Shares; provided, however, that Sales Materials do not include any slides, tapes or other materials or documents that constitute a “written communication” (as defined in Rule 405 under the Securities Act) used in connection with a “road show” or a “bona fide electronic road show” (each as defined in Rule 433 under the Securities Act) related to the offering of Shares contemplated hereby (collectively, “Road Show Materials”).
“Applicable Time” means the time as of which this Underwriting Agreement was entered into, which shall be [·] (New York City time) on the date of this Underwriting Agreement (or such other time as is agreed to by the Fund and the Managing Representative on behalf of the Underwriters).
The Fund has prepared and filed, in accordance with Section 12 of Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”), a registration statement (as amended, the “Exchange Act Registration Statement”) on Form 8-A (File No. 001-33324) under the Exchange Act to register, under Section 12(b) of the Exchange Act, the class of securities consisting of the Common Shares.
Nuveen Asset Management, a Delaware corporation (“Nuveen” or the “Investment Adviser”) and a wholly owned subsidiary of Nuveen Investments, Inc. a Delaware corporation, will act as the Fund’s investment adviser pursuant to an Investment Advisory Agreement by and between the Fund and the Investment Adviser, dated as of March [·], 2007 (the “Investment Advisory Agreement”). Enhanced Investment Technologies, LLC, a Delaware limited liability company (“INTECH” or the “Sub-Adviser,” and together with the Investment Adviser the “Advisers”) will act as the Fund’s investment sub-adviser pursuant to an Investment Sub-Advisory Agreement among the Fund, the Investment Adviser and the Sub-Adviser dated as of March [·], 2007 (the “Sub-Advisory Agreement”). State Street Bank and Trust Company will act as the custodian (the “Custodian”) of the Fund’s cash and portfolio assets pursuant to the Amended and Restated Master Custodian Agreement, dated as of February 25, 2005 (the “Custodian Agreement”). State Street Bank and Trust Company will act as the Fund’s transfer agent, registrar, and dividend disbursing agent (the “Transfer Agent”) pursuant to a Shareholder Transfer Agency and Service Agreement, dated as of October 7, 2002 (the “Transfer Agency Agreement”). The Investment Adviser and UBS Securities LLC have entered into a Shareholder Servicing Agreement dated March [·], 2007 (the “Shareholder Servicing Agreement”). [The Investment Adviser has also entered into an Additional Compensation Agreement with [·] dated March [·], 2007 (the “Additional Compensation Agreement”), a Structuring Fee Agreement with [·] dated March [·], 2007 (the “Structuring Fee Agreement”), and an Incentive Fee Agreement with [·] dated March [·], 2007 (the “Incentive Fee Agreement”).] The Fund and the Investment Adviser have entered into a Subscription Agreement dated as of March [·], 2007 (the “Subscription Agreement”). In addition, the Fund has adopted a dividend reinvestment plan (the “Dividend Reinvestment Plan”) pursuant to which holders of Shares may have their dividends automatically reinvested in additional Common Shares of the Fund if so elected.
As used in this Underwriting Agreement, “business day” shall mean a day on which the New York Stock Exchange (the “NYSE”) is open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and similar terms, as used in this Underwriting Agreement, shall in each case refer to this Underwriting Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of this Underwriting Agreement. The term “or,” as used herein, is not exclusive.
The Fund, the Investment Adviser, the Sub-Adviser and the Underwriters agree as follows:
| 1. | Sale and Purchase. Upon the basis of the warranties and representations and subject to the terms and conditions herein set forth, the Fund agrees to sell to the respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase from the Fund the aggregate number of Firm Shares set forth opposite the name of such Underwriter in Schedule A attached hereto in each case at a purchase price of $19.10 per Share. The Fund is advised that the Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares as soon after the Effective Time as is advisable and (ii) initially to offer the Firm Shares upon the terms set forth in the Prospectus. The Underwriters may from time to time increase or decrease the public offering price after the initial public offering to such extent as they may determine. |
In addition, the Fund hereby grants to the several Underwriters the option to purchase, and upon the basis of the warranties and representations and subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and not jointly, from the Fund, ratably in accordance with the number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares as may be necessary to cover over-allotments made in connection with the offering of the Firm Shares, at the same purchase price per Share to be paid by the Underwriters to the Fund for the Firm Shares. This option may be exercised by the Managing Representative on behalf of the several Underwriters at any time and from time to time on or before the forty-fifth (45th) day following the date hereof, by written notice to the Fund. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as the “Additional Shares Closing Time”); provided, however, that the Additional Shares Closing Time shall not be earlier than the Firm Shares Closing Time (as defined below) nor earlier than the second business day after the date on which the option shall have been exercised nor later than the tenth business day after the date of such notice. The number of Additional Shares to be sold to each Underwriter shall be the number which bears the same proportion to the aggregate number of Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in each case, to such adjustment as the Representatives may determine to eliminate fractional shares).
| 2. | Payment and Delivery. Payment of the purchase price for the Firm Shares shall be made by the Underwriters to the Fund by Federal Funds wire transfer, against delivery of the certificates for the Firm Shares to the Representatives through the facilities of the Depository Trust Company for the respective accounts of the Underwriters. Such payment and delivery shall be made at a time mutually agreed upon by the parties on the third business day following the date of this Underwriting Agreement (unless another date shall be agreed to by the Fund and the Managing Representative on behalf of the Underwriters). The time at which such payment and delivery are actually made is hereinafter sometimes called the “Firm Shares Closing Time.” Certificates for the Firm Shares shall be delivered |
| to the Representatives in definitive form in such names and in such denominations as the Representatives shall specify on the second business day preceding the Firm Shares Closing Time. For the purpose of expediting the checking of the certificates for the Firm Shares by the Representatives, the Fund agrees to make such certificates available to the Representatives for such purpose at least one full business day preceding the Firm Shares Closing Time. |
Payment of the purchase price for the Additional Shares shall be made at the Additional Shares Closing Time in the same manner and at the same office as the payment for the Firm Shares. Certificates for the Additional Shares shall be delivered to the Representatives in definitive form in such names and in such denominations as the Representatives shall specify no later than the second business day preceding the Additional Shares Closing Time. For the purpose of expediting the checking of the certificates for the Additional Shares by the Representatives, the Fund agrees to make such certificates available to the Representatives for such purpose at least one full business day preceding the Additional Shares Closing Time. The Firm Shares Closing Time and the Additional Shares Closing Time are sometimes referred to herein as the “Closing Times.”
| 3. | Representations and Warranties of the Fund, the Investment Adviser and the Sub-Adviser. Each of the Fund, the Investment Adviser and the Sub-Adviser jointly and severally represents and warrants to each Underwriter as of the date of this Underwriting Agreement, as of the Firm Shares Closing Time and as of each Additional Shares Closing Time, if any, as follows: |
| (a) | (i)(A) the Registration Statement has heretofore become effective under the Securities Act or, with respect to any registration statement to be filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Securities Act, will be filed with the Commission and become effective under the Securities Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Shares; (B) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; |
(ii) (A) the Registration Statement complied at the Effective Time, complies as of the date hereof and will comply, as amended or supplemented, at the Firm Shares Closing Time, at each Additional Shares Closing Time, if any, and at each and any time of a sale of Shares by an Underwriter during the period in which a prospectus is required by the Securities Act to be delivered in connection with any sale of Shares, in all material respects with the requirements of the Securities Act and the
Investment Company Act; (B) each Pricing Prospectus and the Prospectus complied or will comply, at the time it was or is filed with the Commission, and the Prospectus complies as of its date and will comply, as amended or supplemented, at the Firm Shares Closing Time, at each Additional Shares Closing Time, if any, and at each and any time of a sale of Shares by an Underwriter during the period in which a prospectus is required by the Securities Act to be delivered in connection with any sale of Shares, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the National Association of Securities Dealers, Inc. (the “NASD”);
(iii)(A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission) as of the date hereof does not, and (3) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), as of the Firm Shares Closing Time and each Additional Shares Closing Time, if any, will not, in each case, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) at no time during the period that begins as of the Applicable Time and ends at the Firm Shares Closing Time did or will the Disclosure Package, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Shares and ends at the Applicable Time did any of the Sales Materials (as materials deemed to be a prospectus under Section 10(b) of the Securities Act pursuant to Rule 482 under the Securities Act), as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the Firm Shares Closing Time, the latest Additional Shares Closing Time, if any, and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund, the Investment Adviser and the Sub-Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through the Managing Representative to the Fund expressly for use in the Registration Statement, the Disclosure Package or the Prospectus as described in Section 9(f) hereof; and provided, further that if any event occurs during any of the periods referred to in clauses (B), (C) or (D) of this Section 3(a)(iii) as a result of which it is necessary to amend or supplement the Prospectus, the Disclosure Package or the Sales Materials, as applicable, in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect, and the Disclosure Package, the Sales Materials or the Prospectus, as applicable, is amended or supplemented in connection therewith in accordance with Section 5(d) of this Underwriting Agreement, such amendment or supplement shall be deemed, for purposes of this Section 3(a)(iii), to have been made contemporaneously with the occurrence of such event;
| (b) | (i) The Fund has been duly formed, is validly existing as a business trust under the laws of The Commonwealth of Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement, the Pricing Prospectus and the Prospectus; (ii) the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Pricing Prospectus and the Prospectus except those the absence of which, either individually or in the aggregate, would not have a material adverse effect on the Fund; and (iv) the Fund has no subsidiaries; provided, however, that solely with respect to the Sub-Adviser, the foregoing representations and warranties concerning the Fund shall be to the best knowledge of the Sub-Adviser. |
| (c) | The capitalization of the Fund is as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus. The Common Shares conform in all material respects to the description of them in the Pricing Prospectus and the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable (except as described in the Registration Statement, the Pricing Prospectus and the |
| Prospectus). The Shares to be issued and delivered to and paid for by the Underwriters in accordance with this Underwriting Agreement against payment therefor as provided by this Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and nonassessable (except as described in the Registration Statement, the Pricing Prospectus and the Prospectus). No person is entitled to any preemptive or other similar rights with respect to the issuance of the Shares. |
| (d) | The Fund is duly registered with the Commission under the Investment Company Act as a diversified, closed-end management investment company, and, subject to the filing of any final amendment to the Registration Statement (a “Final Amendment”), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the Shares as provided in this Underwriting Agreement has or will have been taken by the Fund. |
| (e) | The Fund has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Subscription Agreement, and the Dividend Reinvestment Plan (collectively, the “Fund Agreements”) and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “Advisers Act”), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. |
| (f) | None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the Shares as contemplated by this Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, the Declaration of Trust or the By-laws of the Fund or a material breach of any material agreement or instrument to which the |
| Fund is a party or by which the Fund is bound, or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund (which conflict with or breach, either individually or in the aggregate, would have a material adverse effect on the Fund), other than state securities or “blue sky” laws applicable in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement. |
| (g) | The Fund is not currently in material breach of, or in material default under, any material written agreement or instrument to which it is a party or by which it or its property is bound or affected. |
| (h) | No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. |
| (i) | No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) the absence of which, either individually or in the aggregate, would not have a material adverse effect on the Fund, (ii) have been obtained under the Securities Act, the Exchange Act, the Investment Company Act, or the Advisers Act, and (iii) may be required by the NYSE, the NASD or under state securities or “blue sky” laws, in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement. |
| (j) | The Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE and the Notification has become effective. |
| (k) | PricewaterhouseCoopers LLP, whose report appears in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. |
| (l) | The statement of assets and liabilities included or incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. |
| (m) | The Fund will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial |
| statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences identified by such comparison. |
| (n) | Since the date as of which information is given in the Registration Statement, the Pricing Prospectus and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, properties, net assets or results of operations of the Fund (other than changes resulting from changes in the equity securities markets generally), whether or not arising in the ordinary course of business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its business or incident to its organization and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of the Fund’s capital shares. |
| (o) | There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) could reasonably be expected to result in any material adverse change in the condition, financial or otherwise or business affairs of the Fund or could reasonably be expected to materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement, the Pricing Prospectus or the Prospectus and is not so described as required; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required; provided, however, that solely with respect to the Sub-Adviser, the foregoing representations and warranties concerning the Fund shall be to the best knowledge of the Sub-Adviser. |
| (p) | Except for stabilization transactions conducted by the Underwriters, and except for tender offers, Share repurchases and the issuance or purchase of Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in accordance with the policies of the Fund as set forth in the Pricing Prospectus or the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws. |
| (q) | The Fund intends to direct the investment of the proceeds of the offering of the Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). |
| (r) | The Fund has not distributed and, prior to the later to occur of the (i) date of the last Closing Time and (b) completion of the distribution of the Shares, will not distribute any offering material in connection with the public offering or sale of the Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. |
| (s) | To the knowledge of the Fund after due inquiry, there are no Sales Materials other than the definitive client brochure and the broker selling memo which were filed with the NASD on February 20, 2007 and the INTECH video that was filed with the NASD on March 7, 2007; and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser, the Sub-Adviser or any representative thereof for use in connection with the public offering or sale of the Shares contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. |
| (t) | Except as disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of any Underwriter listed in Schedule A hereto. |
In addition, any certificate signed by any officer of the Fund and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Share shall be deemed to be a representation and warranty by the Fund as to matters covered thereby, to each Underwriter
| 4. | Representations and Warranties of the Investment Adviser and the Sub-Adviser. Each of the Investment Adviser and the Sub-Adviser represents, severally, as to itself only, to each Underwriter as of the date of this Underwriting Agreement, as of the Firm Shares Closing Time and as of each Additional Shares Closing Time, if any, as follows: |
| (a) | Such Adviser has been duly formed, is validly existing as a corporation under the laws of the State of Delaware, in the case of the Investment Adviser, or is validly existing as a limited liability company under the laws of the State of Delaware, in the case of the Sub-Adviser, with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement, the Pricing Prospectus and the |
| Prospectus, and such Adviser is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on such Adviser’s ability to provide services to the Fund as contemplated by the Investment Advisory Agreement or the Sub-Advisory Agreement, as applicable; and such Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus except those the absence of which, either individually or in the aggregate, would not have a material adverse effect on such Adviser. |
| (b) | Such Adviser is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser for the Fund as contemplated by the Investment Advisory Agreement or the Sub-Advisory Agreement, as applicable, the Registration Statement, the Pricing Prospectus and the Prospectus. |
| (c) | Such Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement and the Sub-Advisory Agreement, and, in the case of the Investment Adviser, the Subscription Agreement, the Shareholder Servicing Agreement, the Additional Compensation Agreement, the Structuring Fee Agreement and the Incentive Fee Agreement to which such Adviser is a party (collectively, the “Adviser Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each respective Adviser Agreement to which such Adviser is a party has been duly and validly authorized, executed and delivered by such Adviser; none of the respective Adviser Agreements to which such Adviser is a party violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each respective Adviser Agreement to which such Adviser is a party constitutes a legal, valid and binding obligation of such Adviser, enforceable in accordance with its terms, (i) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws. |
| (d) | Neither (i) the execution and delivery by such Adviser of any respective Adviser Agreement to which such Adviser is a party nor (ii) the consummation by such Adviser of the transactions contemplated by, or the performance of its obligations under any such Adviser Agreement |
| conflicts or will conflict with, or results or will result in a breach of, the Certificate of Incorporation or By-Laws, in the case of the Investment Adviser, or the Limited Liability Company Operating Agreement, in the case of the Sub-Adviser, or any agreement or instrument to which such Adviser is a party or by which such Adviser is bound, or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to such Adviser which conflict or breach, either individually or in the aggregate, would have a material adverse effect on such Adviser. |
| (e) | No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the consummation of the transactions contemplated in, or the performance by such Adviser of its obligations under, any respective Adviser Agreement to which such Adviser is a party, as the case may be, except such as (i) have been obtained under the Securities Act, the Exchange Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the NYSE, the NASD or under state securities or “blue sky” laws, in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement. |
| (f) | The description of such Adviser and its business and the statements attributed to such Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply in all material respects with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances in which they were made) not misleading. |
| (g) | Except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus, there is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of such Adviser, threatened against or affecting such Adviser of a nature required to be disclosed in the Registration Statement, the Pricing Prospectus or the Prospectus or that could reasonably be expected to result in any material adverse change in the condition, financial or otherwise, or business affairs of such Adviser or the ability of such Adviser to fulfill its respective obligations under any respective Adviser Agreement to which such Adviser is a party. |
| (h) | Except for stabilization activities conducted by the Underwriters and except for tender offers, Share repurchases and the issuance or purchase of Shares pursuant to the Fund’s Dividend Reinvestment Plan effected |
| following the date on which the distribution of the Shares is completed in accordance with the policies of the Fund as set forth in the Pricing Prospectus and the Prospectus, such Adviser has not taken and will not take, directly or indirectly, any action designed, or which could reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws. |
| (i) | In the event that the Fund or such Adviser has made available any Road Show Materials or promotional materials (other than the Sales Materials) by means of an Internet web site or similar electronic means such as to constitute a bona fide electronic road show, such Adviser has installed and maintained pre-qualification and password-protection or similar procedures which are designed and reasonably expected to effectively prohibit access to such Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof. |
In addition, any certificate signed by any officer of the Investment Adviser or the Sub-Adviser and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser or the Sub-Adviser, as applicable, as to matters covered thereby, to each Underwriter.
| 5. | Agreements of the Parties. |
| (a) | If the registration statement relating to the Shares has not yet become effective, the Fund will promptly file a Final Amendment, if not previously filed, with the Commission, and will use its commercially reasonable best efforts to cause such registration statement to become effective and, as soon as the Fund is advised, will advise the Managing Representative when the Registration Statement or any amendment thereto has become effective. If it is necessary for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Securities Act, to be filed with the Commission and become effective before the Shares may be sold, the Fund will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective as soon as possible, and the Fund will advise you promptly and, if requested by you, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective. If the Registration Statement has become effective and the Prospectus contained therein omits certain information at the time of effectiveness pursuant to Rule 430A under the Securities Act, the Fund will file a 430A Prospectus pursuant to Rule 497(h) under the Securities Act as promptly as practicable, but no later than the second business day following the earlier of the date of the determination of the offering price of the Shares or the date the Prospectus is first used after the |
| Effective Time. If the Registration Statement has become effective and the Prospectus contained therein does not so omit such information, the Fund will file a Prospectus pursuant to Rule 497(b) or a certification pursuant to Rule 497(j) under the Securities Act as promptly as practicable, but no later than the fifth business day following the date of the later of the Effective Time or the commencement of the public offering of the Shares after the Effective Time. In either case, the Fund will provide the Managing Representative satisfactory evidence of the filing. The Fund will not file with the Commission any Prospectus or any other amendment (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which distribution of the Shares is completed) or supplement to the Registration Statement or the Prospectus unless a copy has first been submitted to the Managing Representative a reasonable time before its filing and the Managing Representative has not objected to it in writing within a reasonable time after receiving the copy. |
| (b) | For the period of three years from the date hereof, the Fund will advise the Managing Representative promptly (i) of the issuance by the Commission of any order in respect of the Fund (other than an effectiveness order with respect to an offering of preferred shares of beneficial interest), or of the Investment Adviser or the Sub-Adviser, which relates to the Fund, and would materially affect the ability of the Investment Adviser or Sub-Adviser, as applicable, to perform its respective obligations to the Fund, (ii) of the initiation or threatening in writing of any proceedings for, or receipt by the Fund of any written notice with respect to, any suspension of the qualification of the Shares for sale in any jurisdiction or the issuance of any order by the Commission suspending the effectiveness of the Registration Statement, (iii) of receipt by the Fund, or any representative or attorney of the Fund, of any other communication from the Commission relating in any material way to the Fund (other than communications with respect to an offering of preferred shares of beneficial interest), the Registration Statement, the Notification, any Preliminary Prospectus, the Sales Materials, the Prospectus or to the transactions contemplated by this Underwriting Agreement and (iv) the issuance by any court, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic, of any order, ruling or decree, or the threat in writing to initiate any proceedings with respect thereto, regarding the Fund, which relates in any material way to the Fund or any material arrangements or proposed material arrangements involving the Fund. The Fund will make every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement and, if any such order is issued, to obtain its lifting as soon as practicable. |
| (c) | If not delivered prior to the date of this Underwriting Agreement, the Fund will deliver to the Managing Representative, without charge, a signed copy of the Registration Statement, the Exchange Act Registration |
| Statement and the Notification and of any amendments (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) to either the Registration Statement, the Exchange Act Registration Statement or the Notification (including all exhibits filed with any such document) and as many conformed copies of the Registration Statement and any amendments thereto (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) (excluding exhibits) as the Managing Representative may reasonably request. |
| (d) | During such period as a prospectus is required by law to be delivered by an underwriter or a dealer, the Fund will deliver, without charge, to the Representatives, the Underwriters and any dealers, at such office or offices as the Representatives may designate, as many copies of the Prospectus as the Representatives may reasonably request, and, if any event occurs during such period as a result of which it is necessary to amend or supplement the Prospectus, in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect, or if during such period it is necessary to amend or supplement the Prospectus to comply with the Securities Act or the Investment Company Act, the Fund promptly will prepare, submit to the Managing Representative, file with the Commission and deliver, without charge, to the Underwriters and to dealers (whose names and addresses the Managing Representative will furnish to the Fund) to whom Shares may have been sold by the Underwriters, and to other dealers on request, amendments or supplements to the Prospectus so that the statements in such Prospectus, as so amended or supplemented, will not, in light of the circumstances under which they were made, be misleading in any material respect and will comply with the Securities Act and the Investment Company Act. Delivery by the Underwriters of any such amendments or supplements to the Prospectus will not constitute a waiver of any of the conditions in Section 6 hereof. |
| (e) | The Fund will make generally available to holders of the Fund’s securities, as soon as practicable but in no event later than the last day of the 18th full calendar month following the calendar quarter in which the date of the Effective Time falls, an earnings statement, if applicable, satisfying the provisions of the last paragraph of Section 11(a) of the Securities Act and, at the option of the Fund, Rule 158 under the Securities Act. |
| (f) | If the transactions contemplated by this Underwriting Agreement are consummated, the Fund shall pay all costs and expenses incident to the performance of the obligations of the Fund under this Underwriting Agreement (to the extent such expenses do not, in the aggregate, exceed |
| $0.04 per Share), including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each Preliminary Prospectus, the Prospectus and all amendments and supplements thereto, (ii) the issuance of the Shares and the preparation and delivery of certificates for the Shares, (iii) the registration or qualification of the Shares for offer and sale under the securities or “blue sky” laws of the jurisdictions referred to in the foregoing paragraph, including the reasonable fees and disbursements, if any, of counsel for the Underwriters in that connection, and the preparation and printing of any preliminary and supplemental “blue sky” memoranda, (iv) the furnishing (including costs of design, production, shipping and mailing) to the Underwriters and dealers of copies of each Preliminary Prospectus relating to the Shares, the Sales Materials, the Prospectus, and all amendments or supplements to the Prospectus, and of the other documents required by this Section to be so furnished, (v) the filing requirements of the NASD, in connection with its review of the financing, including filing fees and the separate fees, disbursements and other charges, if any, of counsel for the Underwriters in that connection, (vi) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Fund to the Underwriters, (vii) the listing of the Shares on the New York Stock Exchange and (viii) the transfer agent for the Shares; provided that (i) the Fund, the Investment Adviser, the Sub-Adviser and each Underwriter shall pay its own costs and expenses relating to the attendance at any road show or other informational meeting relating to the Fund, (ii) each Underwriter shall pay the costs and expenses of any internal promotional or informational materials relating to the Fund, other than the Sales Materials, prepared by such Underwriter in connection with the offering of the Shares, (iii) the Underwriters shall pay the costs and expenses of any “tombstone” announcements relating to the offering of the Shares and (iv) except as expressly provided in this Section 5(f), the Underwriters shall pay their own costs and expenses, including fees and disbursements of their counsel. To the extent the foregoing costs and expenses incident to the performance of the obligations of the Fund under this Underwriting Agreement exceed, in the aggregate, $0.04 per Share, the Investment Adviser or an affiliate will pay all such excess costs and expenses. The Fund, the Investment Adviser and the Sub-Adviser may otherwise agree among themselves as to the payment of the foregoing expenses, whether or not the transactions contemplated by this Underwriting Agreement are consummated, provided, however, that in no event shall the Underwriters be obligated to pay any expenses intended to be borne by the Fund or the Investment Adviser as provided above. |
| (g) | If the transactions contemplated by this Underwriting Agreement are not consummated, except as otherwise provided herein, no party will be under any liability to any other party, except that (i) if this Underwriting Agreement is terminated by (x) the Fund, the Investment Adviser or the Sub-Adviser pursuant to any of the provisions hereof (otherwise than |
| pursuant to Section 7 hereof) or (y) by the Representatives or the Underwriters because of any inability, failure or refusal on the part of the Fund, the Investment Adviser or the Sub-Adviser to comply with any material terms of this Underwriting Agreement or because any of the conditions in Section 6 are not satisfied, the Investment Adviser, the Sub-Adviser or such Adviser’s affiliates and the Fund, jointly and severally, will reimburse the Underwriters for all out-of-pocket expenses (including the reasonable fees, disbursements and other charges of their counsel) reasonably incurred by them in connection with the proposed purchase and sale of the Shares (provided, however, that the Fund, the Investment Adviser and the Sub-Adviser shall not be liable for any loss of anticipated profits or speculative or consequential or similar damages for such termination) and (ii) no Underwriter who has failed or refused to purchase the Shares agreed to be purchased by it under this Underwriting Agreement, in breach of its obligations pursuant to this Underwriting Agreement, will be relieved of liability to the Fund, the Investment Adviser, the Sub-Adviser and the other Underwriters for damages occasioned by its default. |
| (h) | Without the prior written consent of the Managing Representative, the Fund will not offer, sell or register with the Commission, or announce an offering of, any equity securities of the Fund, within 180 days after the date of the Effective Time, except for the Shares as described in the Prospectus and any issuances of Common Shares pursuant to the Dividend Reinvestment Plan and except in connection with any offering of preferred shares of beneficial interest as contemplated by the Prospectus. |
| (i) | The Fund will use its commercially reasonable best efforts to cause the Shares to be listed on the NYSE prior to the date the Shares are issued, subject only to official notice of the issuance thereof, and comply with the rules and regulations of such exchange. |
| (j) | The Fund will direct the investment of the net proceeds of the offering of the Shares in such a manner as to comply with the investment objective and policies of the Fund as described in the Prospectus. |
| 6. | Conditions of the Underwriters’ Obligations. The obligations of the Underwriters to purchase the Shares are subject to the accuracy on the date of this Underwriting Agreement, and as of each of the Closing Times, of the representations of the Fund, the Investment Adviser and the Sub-Adviser in this Underwriting Agreement, to the accuracy and completeness of all material statements made by the Fund, the Investment Adviser or the Sub-Adviser or any of their respective officers in any certificate delivered to the Managing Representative or its counsel pursuant to this Underwriting Agreement, to performance by the Fund, the Investment Adviser and the Sub-Adviser of their respective obligations under this Underwriting Agreement and to the satisfaction (or waiver in writing by the Managing Representative on behalf of the Underwriters) of each of the following additional conditions: |
| (a) | The Registration Statement must have become effective by 5:30 p.m., New York City time, on the date of this Underwriting Agreement or such later date and time as the Managing Representative consents to in writing. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act. |
| (b) | No order suspending the effectiveness of the Registration Statement may be in effect and no proceedings for such purpose may be pending before or, to the knowledge of counsel to the Underwriters, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with or waived to the reasonable satisfaction of the Managing Representative. |
| (c) | Since the dates as of which information is given in the Registration Statement, the Pricing Prospectus and the Prospectus, as of the date of this Underwriting Agreement, (i) there must not have been any material change in the Common Shares or a material adverse change in the liabilities of the Fund except as set forth in or contemplated by the Pricing Prospectus or the Prospectus; (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund, the Investment Adviser or the Sub-Adviser whether or not arising from transactions in the ordinary course of business as set forth in or contemplated by the Pricing Prospectus or the Prospectus which in the judgment of the Managing Representative would materially adversely affect the market for the Shares; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement, the Pricing Prospectus and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or that is not reflected in the Registration Statement, the Pricing Prospectus or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case of the Pricing Prospectus and the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Managing Representative, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Shares pursuant to this Underwriting Agreement by the Underwriters, at the initial public offering price of the Shares. |
| (d) | The Managing Representative must have received as of each Closing Time a certificate, dated such date, of the President, Managing Director or a Vice-President and the Controller, Treasurer, Assistant Treasurer, Chief Financial Officer or Chief Accounting Officer of each of the Fund, the Investment Adviser and the Sub-Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund, the Investment Adviser and the Sub-Adviser, as the case may be) that (i) the signers have carefully examined the Registration Statement, the Prospectus, the Pricing Prospectus and this Underwriting Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers), the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) and the representations of the Sub-Adviser (with respect to the certificates from such officers of the Sub-Adviser) in this Underwriting Agreement are accurate on and as of the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers), the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) or the Sub-Adviser (with respect to the certificates from such officers of the Sub-Adviser, which change would materially and adversely affect the ability of the Fund, the Investment Adviser or the Sub-Adviser, as the case may be, to fulfill its obligations under this Underwriting Agreement, the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser) or the Sub-Advisory Agreement (with respect to the certificates from such officers of the Sub-Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the certificates from such officers of the Fund only, to the knowledge of such officers after reasonable investigation, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) with respect to the certificates from such officers of the Investment Adviser only, no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Underwriting Agreement, the Structuring Fee Agreement, the Additional Compensation Agreement, the Subscription Agreement, the Sub-Advisory Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (vi) with respect to the certificates from such officers of the Sub-Adviser only, no order having a |
| material adverse effect on the ability of the Sub-Adviser to fulfill its obligations under this Underwriting Agreement or the Sub-Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers of the Sub-Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vii) each of the Fund (with respect to the certificates from such Fund officers), the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) and the Sub-Adviser (with respect to the certificates from such officers of the Sub-Adviser) has performed all of its respective agreements that this Underwriting Agreement requires it to perform by such Closing Time (to the extent not waived in writing by the Managing Representative). |
| (e) | The Managing Representative must have received as of each Closing Time the opinions dated as of the date thereof substantially in the form of Schedules B, C and D to this Underwriting Agreement from the counsel identified in each such Schedules. With respect to the opinions identified in such Schedule B, to the extent that the matters addressed in such opinions relate to matters of Massachusetts law, such opinions may be rendered by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP addressed to the Managing Representative. |
| (f) | The Managing Representative must have received as of each Closing Time from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP an opinion dated as of the date thereof with respect to the Fund, the Shares, the Registration Statement and the Prospectus, this Underwriting Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Shares. Such opinion and proceedings shall fulfill the requirements of this Section 6(f) only if such opinion and proceedings are reasonably satisfactory in all respects to the Managing Representative. The Fund, the Investment Adviser and the Sub-Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion. |
| (g) | The Managing Representative must have received on the date this Underwriting Agreement is signed and delivered by you a signed letter, dated such date, substantially in the form of Schedule E to this Underwriting Agreement from the independent registered public accounting firm designated in such Schedule. The Managing Representative also must have received as of each Closing Time a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Underwriting Agreement, specified in the letter, to a date not more than five business days before the date of such Closing Time, that would require any change in their letter referred to in the foregoing sentence. |
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Underwriting Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Underwriters, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such form.
| 7. | Termination. This Underwriting Agreement may be terminated by the Managing Representative by notifying the Fund at any time: |
| (a) | before the later of the Effective Time and the time when any of the Shares are first generally offered pursuant to this Underwriting Agreement by the Managing Representative to dealers by letter or telegram; |
| (b) | as of or before any Closing Time if, in the sole judgment of the Managing Representative, payment for and delivery of any Shares is rendered impracticable or inadvisable because (i) trading in the equity securities of the Fund is suspended by the Commission or by the principal exchange that lists the Shares, (ii) trading in securities generally on the NYSE or the Nasdaq Stock Market shall have been suspended or limited or minimum or maximum prices shall have been generally established on such exchange or over-the-counter market, (iii) additional material governmental restrictions, not in force on the date of this Underwriting Agreement, have been imposed upon trading in securities or trading has been suspended on any U.S. securities exchange, (iv) a general banking moratorium has been established by U.S. federal or New York authorities or (v) any material adverse change in the financial or securities markets in the United States or in political, financial or economic conditions in the United States or any outbreak or material escalation of hostilities or declaration by the United States of a national emergency or war or other calamity, terrorist activity or crisis shall have occurred the effect of any of which is such as to make it, in the sole judgment of the Managing Representative, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated by the Prospectus; or |
| (c) | as of or before any Closing Time, if any of the conditions specified in Section 6 with respect to such Closing Time have not been fulfilled when and as required by this Underwriting Agreement, and the Managing Representative shall have given the Fund and the Advisers notice thereof and a reasonable opportunity to fulfill such condition. |
| 8. | Substitution of Underwriters. If one or more of the Underwriters fails (other than for a reason sufficient to justify the termination of this Underwriting Agreement) to purchase as of any Closing Time the Shares agreed to be purchased as of such Closing Time by such Underwriter or Underwriters, the |
| Managing Representative may find one or more substitute underwriters to purchase such Shares or make such other arrangements as the Managing Representative deems advisable, or one or more of the remaining Underwriters may agree to purchase such Shares in such proportions as may be approved by the Managing Representative, in each case upon the terms set forth in this Underwriting Agreement. If no such arrangements have been made within 36 hours after the date of such Closing Time, and |
| (a) | the number of Shares to be purchased by the defaulting Underwriters as of such Closing Time does not exceed 10% of the Shares that the Underwriters are obligated to purchase as of such Closing Time, each of the nondefaulting Underwriters will be obligated to purchase such Shares on the terms set forth in this Underwriting Agreement in proportion to their respective obligations under this Underwriting Agreement, or |
| (b) | the number of Shares to be purchased by the defaulting Underwriters as of such Closing Time exceeds 10% of the Shares to be purchased by all the Underwriters as of such Closing Time, the Fund will be entitled to an additional period of 24 hours within which to find one or more substitute underwriters reasonably satisfactory to the Managing Representative to purchase such Shares on the terms set forth in this Underwriting Agreement. |
Upon the occurrence of the circumstances described in the foregoing paragraph (b), either the Managing Representative or the Fund will have the right to postpone the date of the applicable Closing Time for not more than five business days in order that necessary changes and arrangements (including any necessary amendments or supplements to the Registration Statement, the Pricing Prospectus or the Prospectus) may be effected by the Managing Representative and the Fund. If the number of Shares to be purchased as of such Closing Time by such defaulting Underwriter or Underwriters exceeds 10% of the Shares that the Underwriters are obligated to purchase as of such Closing Time, and none of the nondefaulting Underwriters or the Fund makes arrangements pursuant to this Section within the period stated for the purchase of the Shares that the defaulting Underwriters agreed to purchase, this Underwriting Agreement will terminate without liability on the part of any nondefaulting Underwriter, the Fund, the Investment Adviser or the Sub-Adviser except as provided in Sections 5(g) and 9 hereof. Any action taken under this Section will not affect the liability of any defaulting Underwriter to the Fund, the Investment Adviser or the Sub-Adviser or to any nondefaulting Underwriters arising out of such default. A substitute underwriter will become an Underwriter for all purposes of this Underwriting Agreement.
| 9. | Indemnity and Contribution. |
| (a) | Each of the Fund, the Investment Adviser and the Sub-Adviser, jointly and severally, agrees to indemnify, defend and hold harmless each |
| Underwriter, its partners, directors and officers, and any person who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, any such Underwriter or any such person may incur under the Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or in the Registration Statement as amended by any post-effective amendment thereof by the Fund) or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) arises out of or is based any untrue statement or alleged untrue statement of a material fact included in any Preliminary Prospectus, any Road Show Material, the Disclosure Package, any Sales Material or the Prospectus (as it may be amended or supplemented) or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except with respect to either of the foregoing clause (i) and (ii) insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information furnished in writing by or on behalf of such Underwriter through the Managing Representative to the Fund expressly for use with reference to any Underwriter in such Registration Statement or in such Disclosure Package or Prospectus (as amended or supplemented) or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such information required to be stated in such Registration Statement or such Disclosure Package or Prospectus or necessary to make such information (with respect to such Disclosure Package and Prospectus, in light of the circumstances under which they were made) not misleading. |
If any action, suit or proceeding (together, a “Proceeding”) is brought against an Underwriter or any such person in respect of which indemnity may be sought against the Fund, the Investment Adviser or the Sub-Adviser pursuant to the foregoing paragraph, such Underwriter or such person shall promptly notify the Fund, the Investment Adviser or the Sub-Adviser, as the case may be, in writing of the institution of such Proceeding and the Fund, the Investment Adviser or the Sub-Adviser shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to such indemnified party and payment of all fees and expenses; provided, however, that the omission to so notify the Fund, the Investment Adviser or the Sub-Adviser shall not relieve the
Fund, the Investment Adviser or the Sub-Adviser from any liability which the Fund, the Investment Adviser or the Sub-Adviser may have to any Underwriter or any such person or otherwise. Such Underwriter or such person shall have the right to employ its or their own counsel in any such case, but the reasonable fees and expenses of such counsel shall be at the expense of such Underwriter or of such person unless the employment of such counsel shall have been authorized in writing by the Fund, the Investment Adviser or the Sub-Adviser, as the case may be, in connection with the defense of such Proceeding or the Fund, the Investment Adviser or the Sub-Adviser shall not have, within a reasonable period of time in light of the circumstances, employed counsel to have charge of the defense of such Proceeding or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them, which are different from, additional to or in conflict with those available to the Fund, the Investment Adviser or the Sub-Adviser (in which case the Fund, the Investment Adviser or the Sub-Adviser shall not have the right to direct the defense of such Proceeding on behalf of the indemnified party or parties), in any of which events such reasonable fees and expenses shall be borne by the Fund, the Investment Adviser or the Sub-Adviser and paid as incurred (it being understood, however, that the Fund, the Investment Adviser or the Sub-Adviser shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction representing the indemnified parties who are parties to such Proceeding). Neither the Fund, the Investment Adviser nor the Sub-Adviser shall be liable for any settlement of any Proceeding effected without its written consent but if settled with the written consent of the Fund, the Investment Adviser or the Sub-Adviser, the Fund, the Investment Adviser or the Sub-Adviser, as the case may be, agrees to indemnify and hold harmless any Underwriter and any such person from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the second sentence of this paragraph, then the indemnifying party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 business days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement and (iii) such indemnified party shall have given the indemnifying party at least 30 days’ prior notice of its intention to settle. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such indemnified party.
| (b) | Each Underwriter severally agrees to indemnify, defend and hold harmless the Fund, the Investment Adviser and the Sub-Adviser, and each of their respective shareholders, partners, managers, members, trustees, directors and officers, and any person who controls the Fund, the Investment Adviser or the Sub-Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation), which, jointly or severally, the Fund, the Investment Adviser, the Sub-Adviser or any such person may incur under the Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information furnished in writing by or on behalf of such Underwriter to the Fund, the Investment Adviser or the Sub-Adviser expressly for use in the Registration Statement (or in the Registration Statement as amended by any post-effective amendment thereof by the Fund) or in the Disclosure Package or the Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such information required to be stated in such Registration Statement or the Disclosure Package or the Prospectus or necessary to make such information not misleading (with respect to the Disclosure Package and the Prospectus, in light of the circumstances under which they were made). |
If any Proceeding is brought against the Fund, the Investment Adviser, the Sub-Adviser or any such person in respect of which indemnity may be sought against any Underwriter pursuant to the foregoing paragraph, the Fund, the Investment Adviser, the Sub-Adviser or such person shall promptly notify such Underwriter in writing of the institution of such Proceeding and such Underwriter shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to such indemnified party and payment of all fees and expenses; provided, however, that the omission to so notify such Underwriter shall not relieve such Underwriter from any liability which such Underwriter may have to the Fund, the Investment Adviser, the Sub-Adviser or any such person or otherwise. The Fund, the Investment Adviser, the Sub-Adviser or such person shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Fund, the Investment Adviser, the Sub-Adviser or such person, as the case may be, unless the employment of
such counsel shall have been authorized in writing by such Underwriter in connection with the defense of such Proceeding or such Underwriter shall not have, within a reasonable period of time in light of the circumstances, employed counsel to have charge of the defense of such Proceeding or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them, which are different from or additional to or in conflict with those available to such Underwriter (in which case such Underwriter shall not have the right to direct the defense of such Proceeding on behalf of the indemnified party or parties, but such Underwriter may employ counsel in connection with the defense thereof but the fees and expenses of such counsel shall be at the expense of such Underwriter), in any of which events such fees and expenses shall be borne by such Underwriter and paid as incurred (it being understood, however, that such Underwriter shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction representing the indemnified parties who are parties to such Proceeding). No Underwriter shall be liable for any settlement of any such Proceeding effected without the written consent of such Underwriter but if settled with the written consent of such Underwriter, such Underwriter agrees to indemnify and hold harmless the Fund, the Investment Adviser, the Sub-Adviser and any such person from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then the indemnifying party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 business days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement and (iii) such indemnified party shall have given the indemnifying party at least 30 days’ prior notice of its intention to settle. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such indemnified party.
| (c) | If the indemnification provided for in this Section 9 is unavailable to an indemnified party under subsections (a) and (b) of this Section 9 in respect of any losses, damages, expenses, liabilities or claims referred to therein, then each applicable indemnifying party, in lieu of indemnifying such |
| indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, damages, expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Fund, the Investment Adviser and the Sub-Adviser on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Fund, the Investment Adviser and the Sub-Adviser on the one hand and of the Underwriters on the other in connection with the statements or omissions, which resulted in such losses, damages, expenses, liabilities or claims, as well as any other relevant equitable considerations. The relative benefits received by the Fund, the Investment Adviser and the Sub-Adviser on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Fund and the total underwriting discounts and commissions received by the Underwriters, bear to the aggregate public offering price of the Shares. The relative fault of the Fund, the Investment Adviser and the Sub-Adviser on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Fund, the Investment Adviser or the Sub-Adviser or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to in this subsection shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating, preparing to defend or defending any Proceeding. |
| (d) | The Fund, the Investment Adviser, the Sub-Adviser and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in subsection (c) above. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the fees and commissions received by such Underwriter. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are several in proportion to their respective underwriting commitments and not joint. |
| (e) | The indemnity and contribution agreements contained in this Section 9 and the covenants, warranties and representations of the Fund contained in this Underwriting Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of any Underwriter, its partners, directors or officers or any person (including each partner, officer or director of such person) who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of the Fund, the Investment Adviser or the Sub-Adviser, its shareholders, partners, advisers, members, trustees, directors or officers or any person who controls the Fund, the Investment Adviser or the Sub-Adviser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall survive any termination of this Underwriting Agreement or the issuance and delivery of the Shares. The Fund, the Investment Adviser, the Sub-Adviser and each Underwriter agree promptly to notify each other of the commencement of any Proceeding against it and, in the case of the Fund, the Investment Adviser or the Sub-Adviser, against any of the Fund’s trustees, directors or officers, or any of the Investment Adviser’s or the Sub-Adviser’s shareholders, partners, managers, members, trustees, directors or officers in connection with the issuance and sale of the Shares, or in connection with the Registration Statement or Prospectus. |
| (f) | The Fund, the Investment Adviser and the Sub-Adviser each acknowledge that the statements in the Prospectus with respect to (1) the public offering of the Shares as set forth on the cover page of the Prospectus and (2) the names of the Underwriters and number of Common Shares allocated for purchase by such Underwriters, the selling concessions and reallowances of selling concessions and payment of fees to Underwriters that meet certain minimum sales thresholds, the statements regarding stabilization, penalty bids and syndicate short selling, and the statements regarding electronic delivery of prospectuses, all as described under the caption “Underwriting” in the Prospectus, constitute the only information furnished in writing by or on behalf of any Underwriter through the Managing Representative to the Fund expressly for use with reference to such Underwriter in the Registration Statement or in the Disclosure Package or the Prospectus (as amended or supplemented). The Underwriters severally confirm that these statements are correct in all material respects and were so furnished by or on behalf of each of the Underwriters severally for use in the Prospectus. |
| (g) | Notwithstanding any other provisions in this Section 9, no party shall be entitled to indemnification or contribution under this Underwriting Agreement against any loss, claim, liability, expense or damage arising by reason of such person’s willful misfeasance, bad faith, gross negligence or reckless disregard of its duties in the performance of its duties hereunder. The parties hereto acknowledge that the foregoing provision shall be applicable solely as to matters arising under Section 17(i) of the |
| Investment Company Act, and shall not be construed to impose any duties or obligations upon any such parties under this Underwriting Agreement other than as specifically set forth herein (it being understood that the Underwriters have no duty hereunder to the Fund to perform any due diligence investigation). |
| 10. | Notices. Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent to UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department, if to the Fund or the Investment Adviser, shall be sufficient in all respects if delivered or sent to the Fund or the Investment Adviser, as the case may be, at the offices of the Fund or the Investment Adviser at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Legal Officer, and, if to the Sub-Adviser, shall be sufficient in all respects if delivered or sent to Enhanced Investment Technologies, Harbour Financial Center, ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Legal Officer. |
| 11. | Governing Law; Construction. This Underwriting Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Underwriting Agreement (“Claim”), directly or indirectly, shall be governed by, and construed in accordance with, the laws of the State of New York. The Section headings in this Underwriting Agreement have been inserted as a matter of convenience of reference and are not a part of this Underwriting Agreement. |
| 12. | Submission to Jurisdiction. Except as set forth below, no Claim may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and the Fund and UBS Securities each consent to the jurisdiction of such courts and personal service with respect thereto. The Fund and UBS Securities hereby consent to personal jurisdiction, service and venue in any court in which any Claim arising out of or in any way relating to this Underwriting Agreement is brought by any third party against UBS Securities or any indemnified party. Each of UBS Securities, the Fund (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates), the Investment Adviser (on its behalf and, to the extent permitted by applicable law, on behalf of its unitholders and affiliates) and the Sub-Adviser (on its behalf and, to the extent permitted by applicable law, on behalf of its unitholders and affiliates) waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Underwriting Agreement. Each of the Fund, the Investment Adviser and the Sub-Adviser agrees that a final judgment in any such action, proceeding or counterclaim brought in any such court shall be conclusive and binding upon the Fund, the Investment Adviser and the Sub-Adviser, as the case may be, and may be enforced in any other courts in the jurisdiction of which the Fund, the Investment Adviser or the Sub-Adviser, as the case may be, is or may be subject, by suit upon such judgment. |
| 13. | Parties at Interest. The Agreement herein set forth has been and is made solely for the benefit of the Underwriters, the Fund, the Investment Adviser and the Sub-Adviser and to the extent provided in Section 9 hereof the controlling persons, shareholders, partners, members, trustees, managers, directors and officers referred to in such section, and their respective successors, assigns, heirs, personal representatives and executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under or by virtue of this Underwriting Agreement. |
| 14. | Counterparts. This Underwriting Agreement may be signed by the parties in one or more counterparts which together shall constitute one and the same agreement among the parties. |
| 15. | Successors and Assigns. This Underwriting Agreement shall be binding upon the Underwriters, the Fund, the Investment Adviser and the Sub-Adviser any successor or assign of any substantial portion of the Fund’s, the Investment Adviser’s, the Sub-Adviser’s or any of the Underwriters’ respective businesses and/or assets, as the case may be. |
| 16. | Disclaimer of Liability of Trustees and Beneficiaries. A copy of the Agreement and Declaration of Trust of the Fund is on file with the Secretary of State of The Commonwealth of Massachusetts, and notice hereby is given that this Underwriting Agreement is executed on behalf of the Fund by an officer or Trustee of the Fund in his or her capacity as an officer or Trustee of the Fund and not individually and that the obligations under or arising out of this Underwriting Agreement are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and properties of the Fund. |
If the foregoing correctly sets forth the understanding among the Fund, the Investment Adviser, the Sub-Adviser and the Underwriters, please so indicate in the space provided below, whereupon this letter and your acceptance shall constitute a binding agreement among the Fund, the Investment Adviser, the Sub-Adviser and the Underwriters, severally.
| Very truly yours, | ||
| NUVEEN CORE EQUITY ALPHA FUND | ||
|
| ||
| By: |
[·] | |
| Title: |
[·] | |
| NUVEEN ASSET MANAGEMENT | ||
|
| ||
| By: |
[·] | |
| Title: |
[·] | |
| ENHANCED INVESTMENT TECHNOLOGIES, LLC | ||
|
| ||
| By: |
[·] | |
| Title: |
[·] | |
Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A
| UBS SECURITIES LLC | ||
|
| ||
| By: | ▇▇▇▇ ▇▇▇▇ | |
| Title: | Managing Director | |
|
| ||
| By: | ▇▇▇▇ ▇▇▇ | |
| Title: | Executive Director | |
SCHEDULE A
| Underwriters |
Number of Shares | |
| UBS Securities LLC | ||
| [·] | ||
| Total |
||
Schedule A-1
SCHEDULE B
FORM OF OPINION OF ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
REGARDING THE FUND
1. The Registration Statement and all post-effective amendments, if any, are effective under the Securities Act and, to the best of our knowledge, no stop order with respect thereto has been issued and, to the best of our knowledge, no proceeding for that purpose has been instituted or, is threatened by the Commission. Any filing of the Prospectus or any supplements thereto required under Rule 497 under the Securities Act prior to the date hereof have been made in accordance with the manner and within the time required by such rule.
2. The Fund has been formed and is validly existing under the Fund’s Declaration of Trust and the laws of The Commonwealth of Massachusetts as a voluntary association with transferable shares of beneficial interest commonly referred to as a “Massachusetts business trust,” with full power and authority as a business trust to conduct all the activities conducted by it, to own or lease all assets owned (or to be owned) or leased (or to be leased) by it and to conduct its business, as described in the Registration Statement, the Pricing Prospectus and Prospectus; and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing, either alone or in the aggregate, would not have a material adverse effect on the Fund. The Fund has no subsidiaries.
3. The description of the authorized capital stock of the Fund contained in the first three sentences under the caption “Description of Shares — Common Shares” and the second sentence under the caption “Description of Shares — FundPreferred Shares” in the Registration Statement, the Pricing Prospectus and the Prospectus conforms in all material respects to the terms thereof contained in the Fund’s Declaration of Trust. All the Common Shares outstanding prior to the issuance and delivery of the Shares pursuant to the Underwriting Agreement have been duly authorized and are validly issued, fully paid and nonassessable (except as described in the Registration Statement, the Pricing Prospectus and the Prospectus). The Shares to be issued and delivered to and paid for by the Underwriters in accordance with the Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters against payment therefore as provided by the Underwriting Agreement will be validly issued, fully paid and nonassessable (except as described in the Registration Statement, the Pricing Prospectus and the Prospectus). No person is entitled to any preemptive or other similar rights with respect to the issuance of the Shares under applicable law, the Declaration of Trust, the By-laws of the Fund or, to our knowledge, otherwise.
4. The Fund is duly registered with the Commission under the Investment Company Act as a diversified, closed-end management investment company.
Schedule B-1
5. The Fund has power and authority as a Massachusetts business trust to enter into each of the Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement and the Subscription Agreement (collectively, the “Fund Agreements”) and to perform all of the terms and provisions thereof to be performed by it and (A) each Fund Agreement has been duly and validly authorized, executed and delivered by the Fund, (B) none of the Fund Agreement violates in any material respect any of the applicable provisions of the Investment Company Act, the Advisers Act, the Investment Company Act Rules and the Advisers Act Rules, as the case may be, and (C) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement (other than the Underwriting Agreement) constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (2) except as rights to indemnity thereunder may be limited by federal or state securities laws.
6. None of (A) the execution and delivery by the Fund of the Fund Agreements, (B) the issue and sale by the Fund of the Shares as contemplated by the Underwriting Agreement and (C) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements violates or will violate, or results or will result in a breach of, (1) the Declaration of Trust or the By-laws of the Fund, (2) any material agreement or instrument known to us to which the Fund is a party or by which the Fund is bound, (3) any United States or Illinois law, rule or regulation applicable to the Fund or (4) any order of any court, governmental instrumentality, securities exchange or association or arbitrator known to us and specifically naming the Fund (which violation or breach in any such case (1),(2),(3) or (4), either individually or in the aggregate, would have a material adverse effect on the Fund), other than state securities or “blue sky” laws applicable in connection with the purchase and distribution of the Shares by the Underwriters pursuant to the Underwriting Agreement.
7. To the best of our knowledge, the Fund is not currently in material breach of, or in material default under, any material written agreement or instrument to which it is a party or by which it or its property is bound or affected.
8. No consent, approval, authorization or order of any United States or Illinois court or other governmental agency or body or securities exchange or association is required by the Fund for the execution, delivery and performance by the Fund of the Fund Agreements, except such as (A) the absence of which, either individually or in the aggregate, would not have a material adverse effect on the Fund, (B) have been obtained under the Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act, the Securities Act Rules, the Investment Company Act Rules and the Advisers Act Rules and (C) may be required by the New York Stock Exchange, the NASD or under state securities or “blue sky” laws in connection with the purchase and distribution of the Shares by the Underwriters pursuant to the Underwriting Agreement.
Schedule B-2
9. The Shares have been approved for listing on the New York Stock Exchange, subject to official notice of issuance, and the Fund’s Registration Statement on Form 8-A under the 1934 Act is effective.
10. To the best of our knowledge, there is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to our knowledge, threatened against or affecting the Fund, which (i) could reasonably be expected to result in any material adverse change in the condition, financial or otherwise, or business affairs of the Fund or could reasonably be expected to materially adversely affect the properties or assets of the Fund or (ii) is required to be described in the Registration Statement, the Pricing Prospectus or the Prospectus and is not so described as required; and to the best of our knowledge, there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required.
11. The Fund does not require any tax or other rulings to enable it to qualify as a regulated investment company under Subchapter M of the Code.
12. Insofar as the statements contained in the section in the Prospectus entitled “Tax Matters” and the section in the Statement of Additional Information entitled “Tax Matters” constitute summaries of legal matters or legal conclusions, such statements fairly present the information called for with respect to those legal matters or conclusions.
13. The Registration Statement, at the Effective Time, and the Prospectus, as of the date thereof (in each case except the financial statements and schedules and other financial data included therein as to which we express no view), appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act, the Investment Company Act and the Rules and Regulations of the Commission thereunder.
In rendering our opinion, we have relied, as to factual matters, upon the attached written certificates and statements of officers of the Fund.
We are not opining as to factual matters and the character of determinations involved in the registration process is such that we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the information included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus (except to the limited extent set forth in numbered paragraph 12 above). However, we have participated in the preparation of the Registration Statement and the Prospectus and in discussions with certain officers of the Fund, certain officers and employees of the Advisers, representatives of PricewaterhouseCoopers LLP, the independent registered public accounting firm for the Fund, and you and your representatives, and have reviewed certain corporate records, documents and proceedings relating to the Fund. On the basis of such participation and
Schedule B-3
review, nothing has come to our attention that causes us to believe that the Registration Statement, at the Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of its date and as of the applicable Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Prospectus, as of its respective date, and as of the applicable Closing Time, contained any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements in the Prospectus (as so amended or supplemented), in the light of the circumstances under which they were made, not misleading, or that the Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading . This paragraph does not address, and we express no opinion with respect to, the financial statements and related notes and schedules, and other financial, accounting and statistical information, included in, incorporated by reference in, or omitted from, the Registration Statement, the Prospectus, any amendment or supplement to the Prospectus, or the Disclosure Package.
Schedule B-4
SCHEDULE C
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING NUVEEN ASSET MANAGEMENT
1. The Adviser has been duly formed and is validly existing as a corporation under the laws of the State of Delaware with full corporate power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement, the Pricing Prospectus and the Prospectus, and the Adviser is duly licensed and qualified to do business and in good standing in each other jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Adviser’s ability to provide services to the Fund as contemplated by the Investment Advisory Agreement and the Adviser owns, possesses, or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary for the Adviser to carry on its business as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus, except those the absence of which, either individually or in the aggregate, would not have a material adverse effect on the Adviser.
2. The Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act, the Advisers Act Rules or the Investment Company Act Rules from acting as an investment adviser for the Fund as contemplated by the Investment Advisory Agreement, the Registration Statement, the Pricing Prospectus and the Prospectus.
3. The Adviser has full corporate power and authority to enter into each of the Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory Agreement, the Subscription Agreement, the Additional Compensation Agreement, and the Shareholder Servicing Agreement (collectively, the “Adviser Agreements”) and to perform all the terms and provisions thereof to be performed by it, and (A) each such agreement has been duly and validly authorized, executed and delivered by the Adviser; (B) none of the Adviser Agreements violate in any material respect any of the applicable provisions of the Investment Company Act, the Advisers Act, the Investment Company Act Rules and the Advisers Act Rules; and (C) assuming due authorization, execution and delivery by the other parties thereto, each Adviser Agreement (other than the Underwriting Agreement) constitutes a legal, valid and binding obligation of the Adviser, enforceable in accordance with its terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (2) except as rights to indemnity thereunder may be limited by federal or state securities laws.
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4. Neither (A) the execution and delivery by the Adviser of any Adviser Agreement nor (B) the consummation by the Adviser of the transactions contemplated by, or the performance by the Adviser of its obligations under, any Adviser Agreement violates or will violate, or results or will result in a breach of, (1) the Certificate of Incorporation or By-Laws of the Adviser, (2) any agreement or instrument known to me to which the Adviser is a party or by which the Adviser is bound, (3) any United States or Illinois law, rule or regulation applicable to the Adviser or (4) any order of any court, governmental instrumentality, securities exchange or association or arbitrator known to me and specifically naming the Adviser, which violation or breach in any such case (1), (2), (3) or 4 either individually or in the aggregate, would have a material adverse effect on the Adviser.
5. No consent, approval, authorization or order of any United States or Illinois court, or governmental agency or body or securities exchange or association is required by the Adviser for the execution, delivery and performance by the Adviser of the Adviser Agreements, except such as (A) the absence of which, either individually or in the aggregate, would not have a material adverse effect on the Adviser, (B) have been obtained under the Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act, the Securities Act Rules, the Investment Company Act Rules and the Advisers Act Rules and (C) may be required by the New York Stock Exchange, the NASD or under state securities or “blue sky” laws in connection with the purchase and distribution of the Shares by the Underwriters pursuant to the Underwriting Agreement.
6. The description of the Adviser and its business, and the statements attributed to the Adviser, in the Registration Statement, the Pricing Prospectus and the Prospectus comply as to form in all material respects with the requirements of the Securities Act, the Investment Company Act, the Securities Act Rules and the Investment Company Act Rules.
7. Except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus, there is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to my knowledge, threatened against or affecting the Adviser that (A) is required to be disclosed in the Registration Statement, the Pricing Prospectus or the Prospectus or (B) could reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Adviser or the ability of the Adviser to fulfill its respective obligations under any Adviser Agreement.
8. The Registration Statement, at the Effective Time, and the Prospectus, as of the date thereof (in each case except the financial statements and schedules and other financial data included therein as to which I express no view), appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act, the Investment Company Act and the Rules and Regulations of the Commission thereunder.
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In rendering my opinion, I have relied, as to factual matters, upon the attached written certificates and statements of officers of the Adviser.
I am not opining as to factual matters and the character of determinations involved in the registration process is such that I am not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the information included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus. However, I have participated in the preparation of the Registration Statement and the Prospectus and in discussions with certain officers and trustees of the Fund, certain officers and employees of the Advisers, representatives of PricewaterhouseCoopers LLP, the independent registered public accounting firm for the Fund, and you and your representatives, and have reviewed certain corporate records, documents and proceedings relating to the Fund and the Adviser. On the basis of such participation and review, nothing has come to my attention that causes me to believe that the Registration Statement, at the Effective Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of its date and as of the applicable Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Prospectus, as of its respective date, and as of the applicable Closing Time, contained any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements in the Prospectus (as so amended or supplemented), in the light of the circumstances under which they were made, not misleading, or that the Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading . This paragraph does not address, and I express no opinion with respect to, the financial statements and related notes and schedules, and other financial, accounting and statistical information, included in, incorporated by reference in, or omitted from, the Registration Statement, the Prospectus, any amendment or supplement to the Prospectus, or the Disclosure Package.
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SCHEDULE D
FORM OF OPINION OF ▇▇▇▇▇▇▇ PROCTER LLP
REGARDING ENHANCED INVESTMENT TECHNOLOGIES, LLC
1. The Sub-Adviser is validly existing as a limited liability company under the laws of the State of Delaware with full limited liability power and authority to conduct its business as described in the Registration Statement, the Pricing Prospectus and the Prospectus, and the Sub-Adviser is duly licensed and qualified to do business as a foreign corporation and in good standing in each of the jurisdictions set forth on Exhibit A, which jurisdictions have been identified to us by the Sub-Adviser as the jurisdictions in which the Sub-Adviser has materials assets or operations.
2. The Sub-Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act, the Advisers Act Rules or the Investment Company Act Rules from acting as an investment adviser for the Fund as contemplated by the Investment Advisory Agreement, the Registration Statement, the Pricing Prospectus and the Prospectus.
3. The Sub-Adviser has limited liability company power to enter into each of the Underwriting Agreement and the Sub-Advisory Agreement (collectively, the “Sub-Adviser Agreements”) and to carry out all the terms and provisions thereof to be carried out by it, and each such Sub-Adviser Agreement has been duly and validly authorized, executed and delivered by the Sub-Adviser; none of the Sub-Adviser Agreements violate in any material respect any of the applicable provisions of the Investment Company Act, the Advisers Act, the Investment Company Act Rules and the Advisers Act Rules; and assuming due authorization, execution and delivery by the other parties thereto, the Sub-Advisory Agreement constitutes a legal, valid and binding obligation of the Sub-Adviser, enforceable in accordance with its terms
4. Neither (A) the execution and delivery by the Sub-Adviser of any Sub-Adviser Agreements nor (B) the consummation by the Sub-Adviser of the transactions contemplated by, or the performance of its obligations under any Sub-Adviser Agreement (a) require any require any consent, approval, license or exemption by, order or authorization of, or filing, recording or registration by the Company with any Delaware or federal governmental authority, except as have been made or obtained under the Securities Act and the Investment Advisers Act, (b) violates or will violate the Limited Liability Company Operating Agreement or the By-laws, or any Delaware or federal statute, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, known to me and specifically naming the to the Sub-Adviser, or (c) will result in a breach of, or constitute a default under, any agreement or instrument identified to us by the Advisor in connection with this opinion in the Advisor Officer’s Certificate as material to the Adviser’s business or operations.
5. [To the best of our knowledge, except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus, to our knowledge, there is no
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action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or threatened against or affecting the Sub-Adviser of a nature that (i) is required to be disclosed in the Registration Statement, the Pricing Prospectus or the Prospectus or (2) that could reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Sub-Adviser or the ability of the Sub-Adviser to fulfill its respective obligations under any Sub-Adviser Agreement.]
6. We are not representing the Sub-Adviser in any pending litigation in which it is a named defendant that challenges the validity or enforceability of, or seeks to enjoin the performance of, the Underwriting Agreement.
In rendering our opinion, we have relied, as to factual matters, upon the attached written certificates and statements of officers of the Adviser.
In connection with the registration of the Shares, we have advised the Sub-Adviser as to the requirements of the Securities Act, the Investment Company Act and the applicable rules and regulations of the Commission thereunder and have rendered other legal advice and assistance to the Sub-Adviser in the course of the preparation of the registration Statement, the Disclosure Package and the Prospectus. Rendering such assistance involved, among other things, discussions and inquiries concerning various legal and related subjects and reviews of certain corporate records, documents and proceedings. We also participated in conferences with representatives of the Fund and its impendent registered public accounting firm and the Sub-Adviser at which the contents of the Registration Statement, the Disclosure Package and the Prospectus and related matters were discussed. With your permission, we have not undertaken, except as otherwise indicated herein, to determine independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, the Disclosure Package or the Prospectus. On the basis of the information which was developed in the course of the performance of the services referred to above, no information has come to our attention that would lead us to believe that the description of the Sub-Adviser and its business, and the statements attributable to the Sub-Adviser, in the Registration Statement, the Pricing Prospectus and the Prospectus contain any untrue statement of a material fact or omit to state any material fact required to be stated therein (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances in which they were made) or necessary in order to make the statements therein not misleading (except the financial statements, schedules and other financial date included therein, as to which we express no view).
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SCHEDULE E
FORM OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM LETTER
[ · ], 2007
and UBS Securities LLC
As representative of the several underwriters
of the common shares of beneficial interest
of Nuveen Core Equity Alpha Fund
c/o UBS Securities LLC
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Nuveen Core Equity Alpha Fund (the “Fund”) as of [ · ], 2007 and the related statement of operations for the period [ · ], 2007 (date of organization) through [ · ], 2007 (hereafter referred to as “financial statements”) all included in the registration statement on Form N-2 dated [ · ], 2007, filed by the Fund under the Securities Act of 1933, as amended (File No. 333-139962]) and under the Investment Company Act of 1940, as amended (File No. 811-22003) (together, the “Acts”); our report with respect thereto is also included in such registration statement. Such registration statement is herein referred to as the “Registration Statement.”
In connection with the Registration Statement:
| 1. | We are an independent registered public accounting firm with respect to the Fund within the meaning of the Acts and the applicable published rules and regulations thereunder adopted by the Securities and Exchange Commission (“SEC”) and the Public Company Accounting Oversight Board (United States) (“PCAOB”). |
| 2. | In our opinion the financial statements audited by us and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Acts and the related rules and regulations adopted by the SEC. |
| 3. | We have not audited any financial statements of the Fund as of any date or for any period subsequent to [ · ], 2007. Therefore, we are unable to and do not express any opinion on the financial position or results of operations of the Fund as of any date or for any period subsequent to [ · ], 2007. |
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| 4. | For purposes of this letter, we have read the certified resolutions of the meetings of the Board of Trustees for the period subsequent to [ · ], 2007 through [ · ], 2007; officials of the Fund having advised us that all certified resolutions of all such meetings through that date were set forth therein; officials of the Fund have represented that such certified resolutions reflect all substantive matters considered at such meeting. |
The foregoing procedures do not constitute an audit performed in accordance with the standards of the PCAOB. Accordingly, we make no representations as to the sufficiency of the foregoing procedures for your purposes.
| 5. | Fund officials have advised us that no financial statements are available as of any date or for any period subsequent to [ · ], 2007; accordingly, the procedures carried out by us with respect to changes in financial statement items after [ · ], 2007 have, of necessity, been limited. We have inquired of certain officials of the Fund who have responsibility for financial and accounting matters as to whether as of [ · ], 2007 there was any change in capital stock, net assets or liabilities of the Fund as compared with amounts shown on the [ · ], 2007 statement of assets and liabilities included in the Registration Statement. On the basis of these inquiries, nothing came to our attention that caused us to believe that there was any such change as of [ · ], 2007 in the capital stock or net assets except in all instances for changes which the Registration Statement discloses have occurred or may occur. |
| 6. | Our audit of the statement of assets and liabilities and the related statement of operations for the period referred to in the introductory paragraph of this letter comprised of audit tests and procedures deemed necessary for the purpose of expressing an opinion on such financial statements taken as a whole. For none of the periods referred to therein, or any other period, did we perform audit tests for the purpose of expressing an opinion on individual balances of accounts or summaries of selected transactions such as those enumerated above, and, accordingly, we express no opinion thereon. |
| 7. | It should be understood that we make no representations regarding questions of legal interpretation or regarding the sufficiency for your purposes of the procedures enumerated in the preceding paragraph; also, such procedures would not necessarily reveal any material misstatement of the amounts or percentages listed above as set forth in the Registration Statement. Further, we have addressed ourselves solely to the foregoing data as set forth in the Registration Statement and make no representations regarding the adequacy of disclosure or regarding whether any material facts have been omitted. |
| 8. | This letter is solely for the information of the addressees and to assist the underwriters in conducting and documenting their investigation of the affairs of the Fund in connection with the offering of the securities covered by the Registration Statement, and is not to be used, circulated, quoted, or otherwise referred to within or without the underwriting group for any other purposes, |
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including but not limited to the registration, purchase, or sale of securities, nor is it to be filed with or referred to in whole or in part in the Registration Statement or any other document, except that reference may be made to it in the underwriting agreement or in any list of closing documents pertaining to the offering of the securities covered by the Registration Statement.
Yours very truly,
PricewaterhouseCoopers LLP
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